Chipimo: No Third Term For Lungu, He Should Drop Those Aspirations

NAREP president Elias Chipimo says President Edgar Lungu is not eligible to stand in 2021 because of a constitutional restriction of a person who has held office twice getting another chance.
Chipimo, a lawyer, noted that the heated debate over whether President Lungu could run again in 2021, having already been elected to this office twice – first in 2015 when he served the remainder of Michael Sata’s term in accordance with the pre-amended constitution and again in 2016 following the general election.
He noted that the President’s strongest critics believed that any attempt to justify a further term was a recipe for anarchy and were calling for fire and brimstone responses.
“I believe there is a calm and rational approach to this matter and I take a leaf from President Lungu himself who has expressed his opinion on the issue and suggested that those who feel differently should take the matter to the Constitutional Court. Those supporting the President’s position appear to rely primarily on the provisions of Article 106(6)(b) of the amended Constitution. Their argument can be summarised as follows: Although Article 106(3) prevents a person who has twice held the office of President from standing again for that office, there is an exemption under Article 106(6)(b) that would make President Lungu eligible to run again. Article 106(6)(b) states that a person who was elected to the office of President shall only be deemed to have served a ‘term’ if he served for three or more years. President Lungu only served for 18 months and did not therefore complete a ‘term’. Under Article 106(1) of the Constitution, a term of office lasts five years,” Chipimo stated.
“Based on the above interpretation, the current President, having twice held office [as opposed to having twice served a term of office], cannot stand again for election as President. The constitutional restriction does not refer to a person ‘serving a term of office’. It refers to a person ‘holding office’. This is defined as being sworn-in and serving until the next person is sworn-in as President. In short, if the President resigned his office today, he would have ‘held office’, even though he would not have served a term of office and that is the critical distinction.”
He explained that the 2015 elections were not held because there was no immediate successor eligible to automatically assume the office of President, prompting a fresh election as required by the constitution.
“In order to qualify under Article 106(6)(b), President Lungu would have to have been elected as a result of the person who would immediately have assumed the office of president [following the death of Mr Sata] being unable to do so,” Chipimo stated. “This was not the case. Elections in 2015 were not held because there was no immediate successor eligible to automatically assume the office of president; they were held because the constitution required a fresh presidential election, regardless of availability of a suitable successor. To put this response another way, for a person to qualify for the exemption under Article 106(6)(b), that person has to have been elected to the office of president as a result of an election held in accordance with Article 106(5)(b) – an election resulting from the fact that the presidential running mate could not immediately assume the office of the president without an election. Such a situation has not arisen before and could only arise after the constitutional amendment had taken effect (i.e. after the amended constitution was passed by Parliament and activated). Since, therefore, this procedure was not available under the pre-amendment constitution, the answer would be ‘no’, meaning those arguing that the President can stand again on the basis of Article 106(6)(b) cannot proceed on this basis because the three-year exemption does not apply in this instance.”
He stated that there was immense confusion surrounding the matter, which was based on the interpretation of the word ‘term’.
“The second question lies at the heart of the confusion surrounding this issue. It is without doubt the more complex question and is based on an interpretation of the word ‘term’. Those that say the President can stand again believe that a ‘term of office’ for a president is five years. This is correct. However, it is not necessarily the same thing as the period when a President is deemed to ‘hold office’. To ‘hold office’ is simply to be sworn into office and serve as President until the next person is sworn into that office. This is abundantly clear from Article 106(2), which states: The President shall hold office from the date the President-elect is sworn into office and ending on the date the next President-elect is sworn into office’. We can state this another way; although a presidential term is five years, a person can ‘hold office’ for less than five years. The restriction in Article 106(3) does not use the word ‘term’; it uses the words ‘hold office’. ‘A person who has twice held office as President is not eligible for election as President’,” stated Chipimo.